Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) – 2023
This section outlines the procedure for a Magistrate to take cognizance of an offence upon a complaint. It states:
- Cognizance of Offence: A Magistrate with jurisdiction, when receiving a complaint, must examine the complainant and any present witnesses under oath. The gist of this examination needs to be documented in writing and signed by the complainant, witnesses, and the Magistrate.
- Accused’s Right to Be Heard: No cognizance of an offence can be taken without giving the accused an opportunity to be heard.
- Exceptions to Examination: When the complaint is in writing, the Magistrate can skip the examination of the complainant and witnesses in these situations:
- Public Servant or Court Complaint: If a public servant acting in their official duty or a court has filed the complaint.
- Transfer to Another Magistrate: If the Magistrate transfers the case to another Magistrate under Section 212.
- Re-examination Upon Transfer: If the Magistrate examines the complainant and witnesses before transferring the case to another Magistrate under Section 212, the receiving Magistrate does not need to re-examine them.
- Complaints Against Public Servants: If the complaint is against a public servant, the Magistrate must follow the procedure outlined in Section 217.
Illustration:
A person files a complaint alleging theft against another. The Magistrate, upon receiving the complaint, would examine the complainant under oath, record the details, and then inform the accused of the allegations and provide them a chance to respond.
Common Questions and Answers:
- Q: Does the Magistrate have to examine the complainant and witnesses in every case?
A: No, there are exceptions for written complaints from public servants or courts, and when the case is transferred to another Magistrate. - Q: What happens if the accused is not given a chance to be heard?
A: The Magistrate cannot take cognizance of the offense. This violates the accused’s right to a fair hearing. - Q: What is the significance of the written record of the examination?
A: It acts as evidence and a record of the initial proceedings, ensuring transparency and accountability.